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FRANK SCHMECK v. GENERAL BATTERY CORPORATION AND COMMONWEALTH PENNSYLVANIA (01/23/80)

decided: January 23, 1980.

FRANK SCHMECK, JR., APPELLANT
v.
GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. SHERRIDAN E. LOEB, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. WALTER PAUL, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. HOWARD W. GARBER, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. KENNETH HAAS, APPELLANT V. GENERAL BATTERY CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Bucks County in cases of Frank Schmeck, Jr. v. General Battery Corporation and Commonwealth of Pennsylvania, No. 73 April Term, 1977; Sherridan E. Loeb v. General Battery Corporation and Commonwealth of Pennsylvania, No. 72 April Term, 1977; Walter Paul v. General Battery Corporation and Commonwealth of Pennsylvania, No. 212 March Term, 1977; Howard W. Garber v. General Battery Corporation and Commonwealth of Pennsylvania, No. 211 March Term, 1977; and Kenneth Haas v. General Battery Corporation and Commonwealth of Pennsylvania, No. 71 April Term, 1977.

COUNSEL

Joseph Lurie, of counsel, Galfand, Berger, Senesky, Lurie & March, for petitioners.

Richard A. Bausher, with him Stevens & Lee, for General Battery Corporation, respondent.

Sandra S. Christianson, Assistant Attorney General, for respondent.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge DiSalle concurs in result only. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 49 Pa. Commw. Page 17]

This is an appeal from an opinion and order of the Court of Common Pleas of Berks County affirming the Workmen's Compensation Appeal Board (Board), thereby denying benefits to Frank Schmeck, Jr., Sheridan E. Loeb, Walter R. Paul, Howard Garber and Kenneth A. Haas (Claimants).

All of the individual Claimants were employees of General Battery Corporation (Employer), a manufacturer of lead-lined batteries. Claimants had worked in areas of lead exposure for periods varying from 4 1/2 to 21 years. The Employer provided routine physical examinations of employees in lead areas and when employees were found to have a high lead content in their blood after two exposures, they were transferred to non-lead jobs.

Between 1971 and 1972, each of the Claimants in the instant appeal were transferred to non-lead jobs pursuant to Employer's "prevention plan." However, in all but one case, the non-lead employment was at a lower rate of pay.*fn1

After being transferred, each Claimant applied for benefits alleging permanent partial disability due to lead poisoning.*fn2 After hearings, the referee awarded benefits for partial disability, in all cases.

[ 49 Pa. Commw. Page 18]

Appeals were then taken to the Board, and upon review of the evidence, the Board reversed in each case. Thereupon Claimants appealed to the Court of Common Pleas of Berks County. In an opinion and order dated May 17, 1978, Judge Eshelman affirmed the Board's decision and denied benefits. This appeal followed.

Our scope of review in this case, "in the absence of an error of law or violation of constitutional rights, is to determine whether the findings of fact of the Board are supported by substantial evidence, leaving questions of credibility, evidentiary weight and the resolution of conflicts in the testimony to the Board." Cuppett ...


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